U.S. v. Pino

• Decision Date: 30 August 1979
• Docket Number: No. 77-1595,77-1595
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Moses PINO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 908

606 F.2d 908

UNITED STATES of America, Plaintiff-Appellee, v. Moses PINO, Defendant-Appellant.

No. 77-1595.

United States Court of Appeals, Tenth Circuit.

Argued and Submitted Nov. 17, 1978.

Decided Aug. 30, 1979.

Robert Bruce Collins, Asst. U. S. Atty., Albuquerque, N. M. (Victor R. Ortega, U. S. Atty., Albuquerque, N. M., on the brief), for plaintiff-appellee.

L. Lamar Parrish, Albuquerque, N. M. (Calvin Hyer, Jr., of Ussery, Burciaga & Parrish, Albuquerque, N. M., on the brief), for defendant-appellant.

Before HOLLOWAY, DOYLE and LOGAN, Circuit Judges.

HOLLOWAY, Circuit Judge.

Defendant-appellant Moses Pino, an Indian of the Zia Pueblo in New Mexico, was convicted on a jury verdict of a charge of violation of 18 U.S.C. Secs. 1153 and 1112. The indictment charged that defendant, an Indian, in Indian country "did, while driving a motor vehicle in an unlawful manner without due caution and circumspection, unlawfully kill Leslie W. Malcomb."

Defendant appeals his conviction and sentence, ¹ claiming error in the trial court's refusing to give a lesser-included-offense instruction and in rejecting certain psychiatric testimony offered by him. The issues require a rather detailed statement of the trial testimony.

I

a. The prosecution case

The Government's version of events surrounding the tragedy unfolded primarily in the testimony of one Nancy Kasaquito, her husband Leandro, and her aunt Rosita Yepa. During the early evening of February 4, 1977, Mrs. Kasaquito was driving from work in Albuquerque to her home at the Jemez Pueblo, north of the Zia reservation off of Route 44. While proceeding in the westbound lane of Route 44 after passing through the town of Bernalillo, Mrs. Kasaquito noticed the lights of a car coming up behind her, "speeding up real fast as it came closer" so that she worried at first about being hit by it. (II R. 83). As the car approached, however, it went off onto the paved shoulder crossing a solid white line and passed the Kasaquito vehicle on the righthand side. The passing car was a white station wagon, and was estimated to be going 70-75 miles per hour. There was no oncoming traffic in the eastbound lane of Route 44 when this occurred.

Mrs. Kasaquito observed the station wagon continuing on the shoulder for as far as she could see, despite signs along the roadway reading "Do not drive on shoulder." She saw the white vehicle on the shoulder for about half a mile, then temporarily lost sight of it as it went down a slight slope. She briefly saw it again, still on the "far right side" of the paved strip, when suddenly there were "these real bright lights" which signalled, as it turned out, the collision resulting in Leslie Malcolm's death. (Id. 89-90). These details as to speed of the white station wagon, and the fact that it was never observed to return to the roadway proper from the shoulder after passing, were confirmed at trial by Leandro Kasaquito and Rosita Yepa, both passengers in the car driven by Nancy Kasaquito. (Id. 147; III R. 200-01).

When they came upon the accident scene and they were assertedly the first people there the Kasaquitos and Mrs Yepa found defendant Pino sitting at the wheel of the station wagon. Its front wheels were on the paved shoulder while the rear end was in the dirt or gravel off the roadway. At first the witnesses thought that this had been a one-car accident, but then they saw the front parking lights of another car some distance ahead off the roadway. There were no rear lights illuminated on this car the Malcolm vehicle but its rear end had been smashed in considerably by the impact. Nancy Kasaquito testified that she observed defendant at the scene for a couple of minutes and was of the opinion that he was drunk at that time because of the smell of alcohol on him, his stuttering speech and staggering gait, and the way he had earlier speeded past her on the wrong side. (Id. 100-02, 145). Rosita Yepa also testified that defendant had smelled strongly of alcohol and had staggered when outside his car; in her opinion, defendant was drunk. (III R. 207-08).

Mr. Malcolm's body was discovered on the ground near the defendant's vehicle. Phyllis Malcolm, the wife of the victim, testified that she and her husband and granddaughter had been driving to Regina from Albuquerque on Route 44. They were about fifteen miles west of Bernalillo when Mr. Malcolm pulled off onto the paved shoulder to investigate the smell of burning rubber under the hood. After initial difficulty in reaching the fan belt, Mr. Malcolm had moved the car further away from the driving surface and then continued tinkering under the hood. Both the wife and granddaughter testified that the car's parking lights were on, illuminating Mr. Malcolm at the front. (III R. 212, 217). The impact occurred from the rear. The Malcolm car was knocked some distance forward, killing Mr. Malcolm. ² Granddaughter Wanda Malcolm testified that after the accident she did not want to sit in the station wagon which had hit her car, as someone had suggested, "because I smelled booze." Defendant was not then in the station wagon, but Wanda Malcolm said there was a strong odor coming from inside the car and she saw several bottles of beer in the back seat and on the floor. (Id. 220-22).

The Government called as witnesses Officer Darby of the New Mexico State Police and Officer Sosa of the Federal Indian Police, Bureau of Indian Affairs, each of whom had arrived at the scene about a half hour after the 6:30 p. m. accident. Darby identified defendant as the driver of the station wagon involved in the accident and explained his accident reconstruction in which everything was revealed to have occurred on the paved shoulder of Route 44. The Malcolm car, for example, had apparently been completely within the solid white line marking the shoulder and the area of impact was estimated to be 10'3 from that line (I. e., away from the center of the road). (Id. 235-40). Photographic exhibits showing a concentration of damage to the right-rear of the Malcolm vehicle were, in Darby's opinion, consistent with his conclusion of direct rear-end impact from the Pino vehicle. (Id. 259-60).

Darby testified that although defendant was cooperative at the scene and could be understood, "(h)e appeared to be under the influence of alcohol and had a strong odor on his breath and about his person. He seemed unsure of himself on staying on his feet" and his eyes were "red and watery." (Id. 228-29). The officer had listed as "apparent contributing factors," on his accident report, "(d)river's inattention," "under the influence of alcohol," and "(o)ther improper driving" on defendant's part. (Id. 264).

Officer Sosa similarly testified that, in his opinion, defendant was drunk at the time of the accident: his eyes were glassy, his speech was a little slurred, and there was an odor of alcohol on his breath. (Id. 268-69). Sosa's own reconstruction indicated that the accident had occurred completely within the paved shoulder area. Following the accident defendant was taken to a hospital for treatment of a bad lip cut. He there submitted to a blood alcohol test around 9:15 or 9:30 p. m. and was arrested upon release for reckless driving and driving under the influence of alcohol.

The Government's final witnesses sought to demonstrate defendant's alcohol-impaired state at the time of the accident by scientific method and not just by lay opinion. Richard Collins, a chemist employed by the State of New Mexico and an expert on blood alcohol technology, had determined the blood alcohol content in the blood sample taken from defendant on the night of the accident to be .13, using the gas chromatographic method of analysis. ³ This figure is the percentage of grams of alcohol per 100 cubic centimeters of blood at the time the blood was removed here, around 9:15 or 9:30 p. m. (Id. 350-51, 324).

Dr. Allen Jones, associate medical investigator of the State of New Mexico and a specialist in forensic pathology, stated his opinion as to defendant's blood alcohol content at the time of the accident (around 6:30 p. m. on February 4) in light of the test results on blood taken some three hours later. Dr. Jones testified that since alcohol in the blood normally dissipates at the rate of .02 grams per 100 cubic centimeters of blood per hour, defendant's blood alcohol at the earlier time could be estimated to have been .06 higher than it was at the time of removal, or .19. (IV R. 363). ⁴ Dr. Jones went on to say that, at a .19 blood alcohol level, a person weighing 185 pounds and 5'6 in height would suffer "marked disturbances in perception." (Id. 365). He would be dizzy, have slurred speech and staggering gait, and his coordination would "definitely be impaired"; in sum, "an individual would have a very difficult time safely and adequately driving an automobile at this level." (Id. 366-67). ⁵

b. The defense case

Defendant's case rested primarily on his own account of events leading up to the accident and the testimony of several persons who had arrived on the scene shortly after the accident.

Defendant testified that on the afternoon of the accident he had been in Albuquerque in his capacity as Governor of the Zia Pueblo, ⁶ looking at the Albuquerque Indian School for a Zia boy who was having disciplinary problems there. Defendant had earlier been in Bernalillo to pick up some checks at the Manpower office and had consumed no alcohol as of 3:30 p. m. When he finally left Albuquerque around 4:45 to return to the Pueblo, he again passed through Bernalillo and, seeing a truck belonging to Leo Salas parked outside the Highway Bar in that town, stopped to talk with Salas about some tribal business. Defendant said that he drank only three vodka-SevenUps while at the bar, that this was all the alcohol he had had all day, and that he did not feel drunk when he left the bar. (Id. 533, 538-39). Leo Salas had earlier testified that defendant had...